Mack v. Yankah (In re Yankah)

• Decision Date: 25 July 2014
• Docket Number: Civil Action No. 3:13–CV–804.
• Citation: 514 B.R. 159
• Court: U.S. District Court — Eastern District of Virginia
• Parties: In re Lois A. YANKAH, Debtor. Clifford J. Mack, Appellant, v. Lois A. Yankah, Appellee.

514 B.R. 159

In re Lois A. YANKAH, Debtor.Clifford J. Mack, Appellant,

v.Lois A. Yankah, Appellee.

Civil Action No. 3:13–CV–804.

United States District Court,

E.D. Virginia,

Richmond Division.

Signed July 24, 2014.

Filed July 25, 2014.

Robert Allen Canfield, Canfield Shapiro Baer Heller & Johnston, Richmond, VA, for Appellant.

Lois A. Yankah, Richmond, VA, pro se.

MEMORANDUM OPINION

JAMES R. SPENCER, Senior District Judge.

THIS MATTER is before the Court on appeal from the Bankruptcy Court's denial of a motion for reconsideration filed by Appellant Clifford J. Mack (“Mack”). For the reasons that follow, the Court AFFIRMS the bankruptcy court's orders and DISMISSES this Appeal.

I.

On June 4, 2012, Appellee Lois A. Yankah (“Yankah”) entered into a lease agreement with Mack for the rental of real property located at 251 Rocketts Way # 304, Richmond, Virginia 23231. In September 2012, having made only one month's payment of rent to Mack, Yankah filed chapter 13 bankruptcy. Mack sought relief from the bankruptcy court's stay, and such relief was granted on December 14, 2012, allowing Mack to enforce the contractual lease agreement against Yankah.

On March 25, 2013, the General District Court for the County of Henrico, Virginia (“Henrico General District Court”) granted an unlawful detainer filed by Mack, allowing him to evict Yankah from the rented property. After being served with the Unlawful Detainer, Yankah converted her chapter 13 bankruptcy to a chapter 7 bankruptcy on April 9, 2013. Despite this, Yankah was served with a second eviction notice on April 29, 2013, and Mack took possession of the leased property along with Yankah's personal property—which had not been removed—on May 2, 2013.

On June 3, 2013, after the Parties' efforts to return Yankah's personal property to her possession failed, Yankah filed a Motion for Violation of Automatic Stay and Creditor Misconduct (“Misconduct Motion”) against Mack. Briefly, Yankah alleged that Mack refused to allow her to recover her personal property and violated the Bankruptcy Code's automatic stay, 11 U.S.C. § 362, by using her security deposit to offset unpaid rent. The initial hearing on Yankah's Misconduct Motion was held on June 19, 2013. In that hearing, the bankruptcy court appears to have denied Yankah's Misconduct Motion orally, but subsequently continued the Misconduct Motion until July 23, 2013.¹Compare Docket Annotation, In re Yankah, No. 12–35627–KLP (Bankr.E.D. Va. June 19, 2013), ECF No. 65 (indicating “Motion Denied”), with id., ECF No. 66 (indicating that the Misconduct Motion was “to be set for Evidentiary Hearing[ ] per direction of Court”). The bankruptcy court indicated that it deferred disposition of the Misconduct Motion in order to allow Yankah an additional opportunity to recover property still in Mack's possession. The bankruptcycourt indicated to both Parties that the purpose of the July 23 hearing was to take evidence on the circumstances surrounding the eviction and disposition of Yankah's personal property and—in the event of a ruling in Yankah's favor—to take evidence on resulting damages.

At the hearing on July 23, 2013, Yankah failed to present specific, admissible evidence of the personal property not recovered from Mack. Instead, she submitted only an affidavit summarily stating $50,000 in damages. The bankruptcy court took the matter under advisement, but stated that Yankah “had not proved any damages from her loss of personal property.” Memorandum Opinion & Order at 3, In re Yankah, No. 12–35627–KLP. On August 1, 2013, before the bankruptcy court had entered an order regarding the Misconduct Motion, Yankah sent an undated letter to the bankruptcy court indicating that—as a pro se litigant—she did not understand what was required to prove damages. She requested another opportunity to provide evidence of her damages related to the Misconduct Motion.

The bankruptcy court construed this letter as a motion for reconsideration (“Letter Motion”) of the court's oral statements at the hearing on July 23. Mack filed a formal objection to the Letter Motion on August 8, 2013 (“Objection”).² Over this “detailed objection,” the bankruptcy court granted Yankah's Letter Motion for reconsideration by Order dated August 30, 2013 (“August Order”) and scheduled a third hearing on the Misconduct Motion to be held on September 12, 2013. Id.

Prior to the September 12, 2013 hearing, Mack filed an omnibus motion with the bankruptcy court seeking, among other things, reconsideration of the court's August Order (“Motion for Reconsideration”). On September 12, the court denied Mack's Motion for Reconsideration from the bench. In a subsequent order (“September Order”), the bankruptcy court indicated that Mack's Motion for Reconsideration was denied for the reasons set forth in the August Order and for those stated from the bench on September 12. In that hearing, Mack indicated an intention to appeal the bankruptcy court's denial of Mack's Motion for Reconsideration, causing the court to defer its consideration of the Misconduct Motion.

On December 12, 2013, Mack filed this Appeal seeking reversal of the September Order, that is, the bankruptcy court's denial of Mack's Motion for Reconsideration. Yankah filed a brief on January 2, 2014. She additionally filed three documents subsequent to the Appeal before this Court: (1) an Emergency Motion for an Expedited Ruling on Interlocutory Appeal (ECF No. 8) on May 2, 2014, to which Mack objected on May 7, 2014; (2) what was docketed as a “Notice of Interlocutory Appeal” on June 13, 2014; and (3) on June 20, 2014, a Motion for Certification of Direct Appeal from a Bankruptcy Order (ECF No. 13), which appears to seek certification of direct appeal to the Fourth Circuit of the bankruptcy court's order of May 16, 2014.³ For his part, Mack subsequentlyfiled a Motion to Dismiss Yankah's Notice of Interlocutory Appeal (ECF No. 15) and a Motion in Limine (ECF No. 16), which requested that the Court strike various records Yankah filed in support of her Notice of Interlocutory Appeal.⁴

II.

Federal Rule of Bankruptcy Procedure 8001 authorizes appeals as of right from final judgments, orders, and decrees of the bankruptcy court. Fed. R. Bankr.P. 8001(a) (governing appeals pursuant to 28 U.S.C. §§ 158(a)(1) and (a)(2)). In contrast, appeals from interlocutory judgments, orders, or decrees of the bankruptcy court must be accompanied by a motion for leave to appeal and will be considered in the discretion of the court. Fed. R. Bankr.P. 8001(b); see also28 U.S.C. § 158(a)(3). If a required motion for leave to appeal is not filed, the appeal is improperly taken; however, such improperly taken appeals are regarded as motions for leave to appeal and may be granted or denied in the district court's discretion. Fed. R. Bankr.P. 8003(c).

On a properly taken appeal, the district court may “affirm, modify, or reverse a bankruptcy judge's judgment, order, or decree or remand with instructions for further proceedings.” Fed. R. Bankr.P. 8013. The district court reviews the bankruptcy court's findings of fact for clear error and its conclusions of law de novo. Terry v. Meredith (In re Meredith), 527 F.3d 372, 375 (4th Cir.2008) (citing Kielisch v. Educ. Credit Mgmt. Corp. (In re Kielisch), 258 F.3d 315, 319 (4th Cir.2001)). Decisions committed to the discretion of the bankruptcy court are reviewed for abuse of discretion. See Robbins v. Robbins (In re Robbins), 964 F.2d 342, 345 (4th Cir.1992); accord Mercantile Peninsula Bank v. French (In re French), 499 F.3d 345, 357 n. 11 (4th Cir.2007); Morris v. Zabu Holding Co. (In re Morris), 385 B.R. 823 (Bankr.E.D.Va.2008) (collecting cases applying the abuse of discretion standard on appeal).

Under the abuse of discretion standard, the district court will not reverse the bankruptcy court unless its conclusion was “guided by erroneous legal principles,” or “rests upon a clearly erroneous factual finding.” Westberry v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.1999) (citations omitted). However, even if the bankruptcycourt applies the proper legal principles to supported facts, the district court may reverse if it holds “a definite and firm conviction that the [bankruptcy court] committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Id. (quoting Wilson v. Volkswagen of Am., Inc., 561 F.2d 494, 506 (4th Cir.1977)).

III.

Two issues are presented to the Court on this Appeal. First, the Court must determine whether it will grant leave for Mack to appeal. Second, the Court must determine whether the bankruptcy court's denial of Mack's Motion for Reconsideration was an abuse of discretion.

A.

Mack concedes that the September Order is not appealable as of right, see28 U.S.C. § 158(a)(1), and therefore, the Court must determine whether it will grant Mack leave to appeal, see28 U.S.C. § 158(a)(3).⁵Section 158(c)(2) provides that bankruptcy appeals “shall be taken in the same manner as appeals in civil proceedings generally are taken to the courts of appeals from the district courts.” 28 U.S.C. § 158(c)(2). Because section 158(a)(3) offers no guidance for granting leave for an interlocutory appeal, “district courts have routinely looked by analogy to the standard set forth in 28 U.S.C. § 1292(b), which governs interlocutory appeals in non-bankruptcy cases.” First Owners' Ass'n of Forty Six Hundred v. Gordon Props., LLC, 470 B.R. 364, 371–72 (E.D.Va.2012) (citing Atl. Textile Grp., Inc. v. Neal, 191 B.R. 652, 653 (E.D.Va.1996)). Under section 1292(b), leave to file an interlocutory appeal should be granted only where the “order involves a controlling question of law as to which there is substantial ground for difference of opinion,” and immediate appeal would materially advance the termination of the litigation. 28 U.S.C. § 1292(b). However, because section 1292(b) is contrary to the general rule that only final orders may be appealed,...